Citation Nr: 18132237
Decision Date: 09/06/18 Archive Date: 09/06/18
DOCKET NO. 15-39 176
DATE: September 6, 2018
REMANDED
Service connection for bilateral tinnitus is remanded.
Service connection for allergic rhinitis is remanded.
Service connection for psoriasis is remanded.
Service connection for degenerative changes of the bilateral hands (claimed as rheumatoid arthritis) is remanded.
Service connection for rheumatoid arthritis of the bilateral ankles is remanded.
Service connection for rheumatoid arthritis of the bilateral elbows is remanded.
Service connection for rheumatoid arthritis of the bilateral feet is remanded.
Service connection for rheumatoid arthritis of the bilateral wrists is remanded.
Service connection for rheumatoid arthritis of the bilateral shoulders is remanded.
Service connection for rheumatoid arthritis of the lumbar spine is remanded.
REASONS FOR REMAND
The Veteran served honorably on active duty in the United States Army from July 1991 to July 1997. In this appeal, he seeks service connection for tinnitus; allergic rhinitis; psoriasis; degenerative changes of the bilateral hands; and rheumatoid arthritis of the bilateral ankles, bilateral elbows, bilateral feet, bilateral wrists, bilateral shoulders, and lumbar spine. The Veteran’s service treatment records are missing; and were not considered in the adjudication of his claims.
In the rating decision on appeal, the RO denied the 10 issues before the Board on the basis that the Veteran’s service treatment records were not available, and therefore, could not be reviewed to ascertain whether they contained any complaints, treatment, or diagnoses of the medical conditions on appeal.
VA has a duty to assist claimants in obtaining evidence supportive of their claims. In terms of obtaining records in the custody of a Federal Department or Agency, VA has a duty to make as many requests as are necessary to obtain relevant records, to include service medical records. VA will end its efforts to obtain records that it cannot locate only if it concludes that the records sought do not exist or that further efforts to obtain those records would be futile. 38 C.F.R. § 3.159(c)(2). The United States Court of Appeals for Veteran’s Claims (Court) has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).
In this case, a June 2013 memorandum pertaining to a “Formal Finding on the Unavailability of Service Treatment Records” has been included in the claims file. The memorandum states that the Veteran’s service treatment records were unavailable for review; that all procedures to obtain the service treatment records had been correctly followed; and that evidence of written efforts to obtain the records was in the claims file. It went on to report that all efforts to obtain the needed military information had been exhausted; that further attempts would be futile; and that based on these facts, the records were not available. In terms of documenting its efforts to locate the Veteran’s records, the memorandum reflects:
(1) The RO sent the Veteran a letter requesting that he submit all service treatment records to the Department of Veterans Affairs.
(2) The RO sent an email to VA’s Records Management Center (RMC) requesting the Veteran’s service treatment records.
(3) A week later, the RMC replied that it did not have the Veteran’s service treatment records.
(4) The RO then sent the Veteran a second letter requesting alternative evidence to support his claim (no alternative evidence was received).
(5) As a result of the foregoing, further attempts to obtain the Veteran’s service treatment records would be futile.
Because the efforts by the RO to locate the Veteran’s service records essentially consist of contacting the RMC one time and receiving a negative response, and sending the Veteran two letters requesting evidence, the Board finds that further attempts to locate these records should be made.
Upon remand, the RO should once more attempt to assist the Veteran in obtaining alternative evidence to substantiate his claims.
The matters are REMANDED for the following actions:
1. The RO should pursue all reasonable avenues of development to obtain the Veteran’s service records in accordance with 38 U.S.C. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2). All potential avenues to find the records should be explored, to include (for example) asking for assistance from PIES (Personnel Information Exchange System); the NPRC (National Personnel Records Center); the JSRRC (U.S. Army & Joint Services Records Research Center); and the DPRIS (Defense Personnel Records Information Retrieval System).
In doing so, the RO should document all avenues taken and the ultimate outcome of such attempts. If the RO’s attempts to obtain the Veteran’s service records are unsuccessful, the RO should notify the Veteran of VA’s inability to obtain his records in accordance with 38 C.F.R § 3.159(e).
2. The RO should notify the Veteran that he may submit alternative forms of evidence to substantiate his claims, such as statements from other veterans, his friends, family members and employers, who observed him during service or soon after he separated from service experiencing any symptomatology that may be related to the medical conditions on appeal.
H.M. WALKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD Talpins, Patricia

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